In Re Detention of Bolton

800 N.E.2d 128, 343 Ill. App. 3d 1223, 279 Ill. Dec. 286

• Court: Appellate Court of Illinois
• Decided: November 13, 2003
• Docket: 4-02-0515
• Status: Published

Opinions

JUSTICE COOK

delivered the opinion of the court:

Defendant, Paul B. Bolton, appeals an April 16, 2002, jury verdict finding him to be a sexually violent person pursuant to Illinois’s Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 through 99 (West 2000)). We reverse and remand.

I. BACKGROUND

On April 7, 1994, defendant pleaded guilty to criminal sexual assault (720 ILCS 5/12 — 13(b) (West 1994)), a Class X felony, for molestation and oral sex upon a child, his stepsister, which he admitted began when she was 6 yeárs old and he was 12 years old. (Defendant was born in 1976.) Defendant was sentenced to four years’ intensive probation. On June 19, 1995, defendant was found in violation of his probation for attempting to lure a five-year-old girl to an area secluded by a tarp for a sexual offense. He was accordingly sentenced to 12 years’ imprisonment in the Illinois Department of Corrections (DOC). Defendant was scheduled for mandatory supervised release on February 27, 2001.

Prior to defendant’s release, Dr. Jacqueline N. Buck, a licensed clinical psychologist working for the special evaluation unit of DOC, reviewed defendant’s DOC file to determine whether he met the criteria for a sexually violent person under the Act and was therefore in need of a clinical interview. The purpose of a clinical interview is to identify sex offenders who are leaving DOC and have a high risk to reoffend in order to civilly commit them to the Department of Human Services for sex-offender treatment.

On December 22, 2000, Dr. Buck interviewed defendant and decided not to refer defendant for commitment under the Act because he had completed almost two years of sex-offender treatment at the Big Muddy Correctional Facility. In January 2001, Amanda Swope, defendant’s ex-girlfriend and mother of his child, telephoned DOC and expressed concern for the safety of herself and her child after defendant’s release. Due to this call, Dr. Buck reevaluated defendant using information she did not have when making her initial decision. Dr. Buck found this information significant and referred defendant for commitment. On February 26, 2001, the State filed a petition seeking a finding that defendant was a sexually violent person and should be committed pursuant to the Act.

At trial, the State presented Dr. Buck and Dr. Phil Reidda, a licensed clinical psychologist working for Affiliated Psychologists Limited, an organization independently contracted by the State to perform evaluations on persons for whom an Act probable-cause determination has been made. Both Dr. Buck and Dr. Reidda found defendant met the DSM — IV—TR (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders DSM — IV—TR, at xxxiii (4th rev. ed. 2000)) diagnostic criteria for (1) pedophilia, sexually attracted to females, nonexclusive type; (2) paraphilia, not otherwise specified, sexually attracted to nonconsenting females, nonexclusive type; (3) voyeurism; (4) antisocial personality disorder, severe; and (5) narcissistic personality disorder, severe.

They testified defendant has a mental disorder such that he has serious difficulty in controlling his behavior, and there is a substantial probability defendant will engage in acts of sexual violence in the future unless significant intervention has taken place. See 725 ILCS 207/5(f) (West 2000). They based their opinions on the results of psychological tests and actuarial tools, as well as a clinical interview and a review of defendant’s juvenile and adult criminal, sexual, and treatment history.

Defendant presented Dr. Larry M. Davis, a licensed physician specializing in psychiatry who had examined defendant for the purpose of this litigation. Dr. Davis diagnosed defendant with pedophilia, sexually attracted to females, nonexclusive type, and voyeurism. He did not believe there was a substantial probability defendant would sexually reoffend. He based his opinion on evidence of defendant’s treatment at the Big Muddy Correctional Facility. Due to defendant’s high intelligence, further education activity, ongoing therapy, and direct experience of DOC punishment, he felt that defendant’s behavior is controllable. In addition, Dr. Davis contended that the experts in the field agree that the reoffense rate for incestuous sexual molesters is lower than nonincestuous molesters. The fact that defendant’s victims are female also lowers his likelihood of reoffending. Dr. Davis did not rely on actuarial tools to assess defendant’s risk for recidivism.

Defendant also presented Dr. Terence Campbell, a licensed clinical psychologist who reviewed defendant’s psychological evaluations. Dr. Campbell testified at length regarding the history and criticisms of the actuarial tools used in this case. He based many of his opinions on two articles published after Dr. Buck and Dr. Reidda analyzed defendant. Dr. Campbell argued the correlation between the risk factors used by Dr. Buck and Dr. Reidda and recidivism was not statistically significant; the correlation could occur by chance alone. On cross-examination, Dr. Campbell admitted that one of the articles he relied on concluded that the VRAG (Violence Risk Appraisal Guide) and Static-99 tools were found to predict violent and sexual recidivism. He admitted that the actuarial tools used in this case are the best available. He testified that although the tools are used all over the nation, they are not necessarily being used accurately.

The State called rebuttal witness Dr. Dennis Doren, a licensed psychologist, to testify regarding the actuarial tools. He testified that the concept of actuarial tools goes back in psychology almost 100 years with the first intelligence test. In 14 of the 15 states that have sex-offender civil-commitment statutes, at least some of the evaluators use actuarial tools as part of their assessment process. The Association for the Treatment of Sexual Offenders (ATSA) has a policy that evaluators should use validated actuarial risk-assessment tools. He did not consider actuarial tools to be experimental because they are nationally and internationally well tested. Each instrument is complete, but the research continues to improve upon that product.

A jury returned a verdict in favor of committing defendant as a sexually violent person pursuant to the Act. On June 4, 2002, the trial court found commitment to institutional care in a secure facility, the Department of Human Services, to be the least-restrictive treatment alternative and ordered defendant committed accordingly. This appeal followed.

II. ANALYSIS

Defendant raises four issues on appeal: (1) whether the trial court erred in refusing defendant’s proposed jury instructions regarding his ability to control his sexual behavior, (2) whether defendant’s court-appointed counsel was ineffective for failing to object to the introduction of evidence of prior sexual activity that did not consist of “sexually violent offenses” as that term is defined in the Act (725 ILCS 207/ 5(e) (West 2000)), (3) whether the Act is unconstitutional in that it fails to require the Department of Human Services to provide treatment designed to effect recovery from the pertinent mental disorder, and (4) whether the trial court erred in denying defendant’s motion for a Frye hearing (see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) regarding expert testimony based on actuarial data. We reject defendant’s first three issues, but we agree the trial court erred in denying defendant’s motion for a Frye hearing.

Defendant, in a supplemental brief, asks this court to consider whether the trial court improperly denied defendant’s motion for a Frye evidentiary hearing on the admissibility of the actuarial tests relied upon or referred to by the State’s expert witnesses, Dr. Buck and Dr. Reidda. The trial court found that the proffered sexually-violent-person risk assessments were not “new” or “novel” scientific evidence subject to Frye admissibility standards. At trial, both doctors relied, in part, upon their scoring and evaluation of defendant on certain actuarial tools, including the Minnesota Sex Offender Screening Tool (MnSOST), Minnesota Sex Offender Screening Tool — Revised (MnSOST-R), the VRAG, the Hare Psychopathy Checklist — Revised (PCL-R), the Static-99, and the Hanson and Bussiere Meta-analysis, to form an opinion regarding defendant’s probability of recidivism.

Two recent Illinois cases have determined that an expert’s testimony predicated upon the MnSOST, MnSOST-R, RRASOR (Rapid Risk Assessment of Sexual Offense), and Static-99 tests does not satisfy the Frye test for admissibility. People v. Taylor, 335 Ill. App. 3d 965, 979-80, 782 N.E.2d 920, 932 (2002) (Second District); In re Detention of Hargett, 338 Ill. App. 3d 669, 675, 786 N.E.2d 557, 562 (2003) (Third District).

In Illinois, the admission of expert testimony is governed by the Frye standard: whether the methodology or scientific principle upon which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 77, 767 N.E.2d 314, 323-24 (2002) (see also footnote 1 (199 Ill. 2d at 80 n.1, 767 N.E.2d at 325-26 n.1, court has not yet considered adoption of a new standard consistent with Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993)); Frye v. United States, 293. F. 1013 (D.C. Cir. 1923). General acceptance of methodologies does not require universal acceptance, and the trial judge applies the Frye test only if the scientific principle, technique, or test offered by the expert to support his or her conclusion is “new” or “novel.” Donaldson, 199 Ill. 2d at 78-79, 767 N.E.2d at 324. General acceptance and reliability are not two separate questions. The determination of the reliability of an expert’s methodology is naturally subsumed by the inquiry into its general acceptance in the scientific community. Donaldson, 199 Ill. 2d at 81, 767 N.E.2d at 326.

There is a preliminary question whether Frye applies at all to psychological testimony. See People v. Ward, 71 Cal. App. 4th 368, 373, 83 Cal. Rptr. 2d 828, 831 (1999) (psychological evaluation is a learned professional art rather than the exact science with which Frye is concerned). The Seventh Circuit, however, has held that Daubert “is applicable to social science experts, just as it applies to experts in the hard sciences.” Tyus v. Urban Search Management, 102 F.3d 256, 263 (7th Cir. 1996); Daubert, 509 U.S. at 589, 125 L. Ed. 2d at 480, 113 S. Ct. at 2795 (gatekeeping function applies to all forms of “scientific, technical, or other specialized knowledge” (emphasis in original and omitted)); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 143 L. Ed. 2d 238, 246, 119 S. Ct. 1167, 1171 (1999) (Daubert applies not only to testimony based on “ ‘scientific’ ” knowledge, but also to testimony based on “ ‘technical’ ” and “ ‘other specialized’ knowledge”).

The United States Supreme Court, without discussing Frye, has unenthusiastically declared that psychiatrists’ predictions of future violence are admissible. “We are not persuaded that such testimony is almost entirely unreliable and that the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.” Barefoot v. Estelle, 463 U.S. 880, 899, 77 L. Ed. 2d 1090, 1108, 103 S. Ct. 3383, 3397-98 (1983) (the American Psychiatric Association had filed an amicus brief stating that psychiatric predictions of long-term dangerousness were unreliable).

As a result of Barefoot, it has been concluded that a psychologist’s or psychiatrist’s opinion as to an individual’s future dangerousness is generally admissible when that opinion is based upon clinical observation or the evaluator’s personal experience. Taylor, 335 Ill. App. 3d at 976, 782 N.E.2d at 929. Some jurisdictions have gone on to conclude that actuarial instruments are not subject to Frye analysis because they are part of a psychologist’s or psychiatrist’s methodology to predict future dangerousness. See, e.g., Garcetti v. Superior Court, 85 Cal. App. 4th 508, 543, 102 Cal. Rptr. 2d 214, 238 (2000), rev’d & remanded by Cooley v. Superior Court, 29 Cal. 4th 228, 57 P.3d 654, 127 Cal. Rptr. 2d 177 (2002); 1 J. Strong, McCormick on Evidence § 206, at 764 (5th ed. 1999) (same argument was made in support of polygraph examinations). Actuarial tests, however, as presented to the jury in this case, add a quality of mathematical or objective certainty to what is otherwise the subjective opinion of the expert witness. There is an inconsistency in the argument that actuarial instruments are not subject to Frye because they are a part of the psychologist’s art but actuarial instruments are better than the psychologist’s clinical judgment alone.

We agree with the well-reasoned decision in Taylor that the psychological or psychiatric testimony of an expert predicated upon actuarial instruments is scientific evidence subject to Frye. Taylor, 335 Ill. App. 3d at 976, 782 N.E.2d at 929. Taylor pointed to other Illinois decisions holding that Frye should govern the admissibility of psychological and psychiatric expert testimony that is not predicated solely on the evaluator’s own clinical observation and experience. Taylor, 335 Ill. App. 3d at 975-76, 782 N.E.2d at 929, citing In re Marriage of Jawad, 326 Ill. App. 3d 141, 154, 759 N.E.2d 1002, 1012-13 (2001), and People v. Shanahan, 323 Ill. App. 3d 835, 837-38, 753 N.E.2d 1028, 1031-32 (2001) (“battered child syndrome”); see also People v. Zayas, 131 Ill. 2d 284, 546 N.E.2d 513 (1989) (hypnotically refreshed testimony obtained by psychiatrist inadmissible); People v. Baynes, 88 Ill. 2d 225, 430 N.E.2d 1070 (1981) (polygraph testimony inadmissible).

There is a danger that actuarial instruments may intrude upon the proper functioning of the jury, that they may instill a false confidence or carry a misleading sense of scientific infallibility. Donaldson, 199 Ill. 2d at 86-87, 767 N.E.2d at 329. Where the expert’s methods involve principles that are comprehensible to a jury, the concerns over the evidence exerting undue influence and inducing a battle of the experts have less force. On the other hand, when the nature of the technique is more esoteric, as with some types of statistical analyses, or when subjective judgments are misleadingly presented as hard science, a stronger showing of probative value should be required. 1 J. Strong, McCormick on Evidence § 203, at 735 (5th ed. 1999). The supreme court concluded, in Donaldson, that “extrapolation,” establishing a cause and effect relationship based upon similar, yet not identical, scientific studies and theories, did not require a Frye test. “[Extrapolation by nature admits its fallibility — the lack of specific support to establish the existence of a known cause and effect relationship.” Donaldson, 199 Ill. 2d at 87, 767 N.E.2d at 329. That is not true of actuarial instruments, which are presented as reliable methods of determining future dangerousness.

Are these actuarial instruments no different from actuarial tables for life expectancy? Life expectancy tables look to a single, easily identified factor, age, and announce what past experience has been. The actuarial tests before us are more complicated. First, the relevant factors must be identified. Is the sex of the offender relevant? His age? Whether he likes broccoli? Can certain factors ever be ignored? Selection of the appropriate factors is not simply a mathematical computation. Next, it must be determined what weight to assign to the various factors, and then it must be determined how to score the results. Does a score of 23 equate with a high probability of reoffending? It is not necessary to conduct a Frye hearing on Newton’s laws of motion, but the inductive reasoning employed in these actuarial tests presents a different question. The fact that statistics have been used for many years does not mean that it is impossible for any controversy to arise. See People v. Miller, 173 Ill. 2d 167, 188-89, 670 N.E.2d 721, 731-32 (1996) (controversy over statistical frequency of a DNA (deoxyribonucleic acid) match within a certain population).

Some experts have testified that actuarial instruments provide a significant amount of information that far exceeds a psychologist’s ability to make predictions based purely on expert opinion or clinical judgment alone. See Taylor, 335 Ill. App. 3d at 979, 782 N.E.2d at 932 (testimony of Dr. Barry Leavitt). That testimony may simply reinforce the dangers of relying on psychological testimony in this area. If the testimony of the psychologist is, as some have suggested, not scientific evidence at all, but simply testimony as to the psychologist’s observations, it should be given no greater weight than that of a lay witness. Supposed “expert” testimony may provide an easy answer to a question that is almost impossible to answer. In child custody cases, the concern has been expressed that the testimony of psychologists allows judges to avoid difficult decisions and simply defer to the recommendation of the psychologist. H. Gitlin, Mental-Health Professionals in Child-Custody Cases: Giving “Expert” Testimony Its Due, 89 Ill. B. J. 350, 353-54 (2001). The same may be true for juries who must determine whether an individual is a sexually dangerous person.

Dr. Doren testified that the concept of actuarial tools is not novel, that the concept goes back in psychology almost 100 years with the first intelligence test. Dr. Doren is a psychologist, and it is not clear what expertise he has in the field of statistics. See Dura Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002) (expert cannot incorporate the opinion of another on a subject for which he is not qualified). In any event, Dr. Doren’s observation is too general to be of any significance. The particular methodologies employed in this case are of recent development. They have not been subjected to empirical testing. They are controversial and have been frequently criticized.

It is true that many psychologists and psychiatrists utilize these instruments. Taylor, 335 Ill. App. 3d at 978, 782 N.E.2d at 931. It is not clear, however, whether these instruments have any use outside the courtroom setting. See Reference Manual on Scientific Evidence 26 (2d ed. Federal Judicial Center 2000) (concern with result sometimes reached under Frye when testimony was admitted once experts pointed to a consensus in a narrow field they had themselves established). We agree with Taylor, that in the absence of any significant peer review of the validity and reliability of these instruments, we cannot accept the State’s conclusory assertions that the instruments have gained general acceptance in the scientific communities. Nor can we accept the ipse dixit of the witnesses that they are experts and know best whether these tests are valid. In Taylor, both Drs. Maskel and Leavitt testified that there was significant controversy surrounding these instruments and the manner in which they should be used. To that must be added the testimony of Drs. Davis and Campbell in this case.

Psychologists are permitted to give statistical testimony, for example, that experience has shown that certain categories of offenders are reincarcerated at a certain rate. Where the jury is not given evidence that is comprehensible to it, however, but is asked to simply accept the instrument’s conclusion that defendant is in the category of “very high risk of committing future acts of sexual violence,” there is a danger that the jury will abandon its function of weighing the evidence. Statistical indicators present a particular problem where they pertain to volitional conduct.

“[Wlhere the statistical indicators pertain to volitional conduct, the courts are cautious because they place great weight on a conception of human autonomy and dignity that the coldly statistical analysis would undermine. To put it another way, shying away from the statistical predictions reflects a belief that everyone should have the opportunity to depart from the statistical norm.” 1 J. Strong,. McCormick on Evidence § 210, at 805 n.3 (5th ed. 1999).

III. CONCLUSION

Because the use of actuarial instruments in these cases has not been approved in a Frye test, we reverse the trial court’s judgment declaring defendant a sexually violent person under the Act and remand for further proceedings.

Reversed and remanded.

MYERSCOUGH, EJ., concurs.